In the law school legal ethics course I teach, we study a classic disciplinary case in which a lawyer concealed the fact of his client’s death – dodging interrogatories and an independent medical exam (!), and telling an arbitration panel the client was “unavailable” – all in aid of negotiating a more favorable settlement. My students learn that, among other things, conduct like that violates Model Rule 3.3, mandating candor to the tribunal.
The plaintiff’s lawyer in a recent Illinois case, Robison v. Orthotic & Prosthetic Lab, was never in my ethics class — but wherever he went to law school, he apparently missed an important point. In Robison, the court of appeals tossed out the confidential settlement that plaintiff’s lawyer had negotiated, because he had failed to reveal that his client had died almost a year before the confidential settlement was concluded.
No authority to settle
Vacating the lower court’s order enforcing the settlement, the court of appeals said that “In failing to disclose the fact of the plaintiff’s death, [the lawyer] intentionally concealed a material fact that would have reduced the overall value of the claim for damages.”
In fact, the lawyer had no authority to enter into the settlement at all, the court held; the deal was struck after the client had died and before any personal representative replaced him.
The plaintiff had sued to recover for injuries he sustained when his prosthetic leg, manufactured by the defendant, repeatedly fell off, allegedly causing him to fall. Plaintiff sought at least $400,000 in damages in the state court suit.
The court of appeals rejected the lawyer’s argument that withholding the information that his client was dead was in the client’s best interest and was in keeping with the rules of professional responsibility.
Referral of both parties’ lawyers to disciplinary board
In a significant twist, the court sent a copy of its opinion to the state disciplinary board so that it could consider the actions of both lawyers in the case.
The plaintiff’s lawyer made “material omissions and misrepresentations,” said the court, potentially constituting violations of Illinois Rule of Professional Conduct 8.4(b), which like the analogous Model Rule, bars dishonesty, fraud, deceit and misrepresentation.
But what about the defendant’s lawyer? The court said that it “believe[d] that defense counsel possessed sufficient knowledge to trigger a duty to report [opposing counsel’s] misconduct to the [disciplinary board], and that the failure to report the misconduct constitutes a potential violation of Rule 8.3.” Illinois Rule 8.3, similar (but not identical) to Model Rule 8.3, requires a lawyer who knows that another lawyer has violated Rule 8.4(b) to inform the appropriate professional authority.
Disciplinary action against a lawyer based on violating the reporting duty is very rare. But one of the few cases where discipline was imposed, In re Himmel, was decided by the Illinois Supreme Court in 1988 — so perhaps it is less surprising that the Illinois Court of Appeals would view the failure to report with a dim eye, and see it as a potential ethics violation.